Published May 29, 2013
Senate Republicans are urging the Supreme Court to rein in President Obama's powers to appoint officials when Congress is not around, arguing that this president has taken the "power grab" to new levels.
All 45 Republican senators filed a brief with the Supreme Court on Tuesday which argued Obama went too far in appointing members to the National Labor Relations Board in January 2012. That board has been behind a host of union-friendly decisions, and the dispute over Obama's appointees threatens to upend those rulings -- as well as stall the board itself.
Republicans, in their brief, urged the high court to rule on the validity of the 2012 appointments, while arguing that Obama overstepped his bounds.
"The president's decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab," Senate Republican Leader Mitch McConnell said in a written statement. "We will demonstrate to the Court how the president's unconstitutional actions fundamentally endanger the Congress' role in providing a check on the excesses of the executive branch."
The brief itself was submitted by attorney Miguel Estrada, whom the Republicans retained for work on this case.
Estrada wrote that Obama's actions "would radically reshape the constitutional structure" if allowed to stand.
"If he can override Senate procedures and second-guess its account of its actions, there is no telling what mischief he can achieve," he wrote.
At issue are so-called recess appointments, a tactic used by presidents of both parties in the past. Obama has made 32 of them to date, while his predecessor, George W. Bush, made 171 over his two terms. Bill Clinton logged 139 recess appointments.
But a federal appeals court ruled earlier this year that the president made appointments to the NLRB when the Senate was not technically in recess, and therefore the appointments were invalid.
A second appeals court ruled in May that another NLRB appointment from 2010 was also made when the Senate was merely adjourned. The court again ruled that the appointment was invalid.
The administration argues that invalidating these appointments would invalidate recess appointments going back 100 years.
But Republicans, and the business battling the NLRB in the prior case, argue that Obama has stretched his authority.
The Obama administration had earlier appealed the January decision to the Supreme Court.